Defence participation through pre-trial disclosure: issues and implications

Article English OPEN
Owusu-Bempah, A. (2013)

The Criminal Procedure and Investigations Act 1996 imposed, for the first time in the history of English criminal procedure, a general duty on the defence to disclose the details of its case ahead of trial. These disclosure requirements have been augmented by the case management provisions of the Criminal Procedure Rules and judicial responses to the perceived need to tackle ambush defences. The defence disclosure regime has changed the role of the defence as a participant in the criminal process. It raises issues of principle in terms of its effect on fai r trial rights and has implications for the nature of English criminal procedure. This article examines these issues and implications; it reveals that the defence disclosure regime has caused a shift in the English criminal process further away from an adv ersarial style contest towards a participatory model of procedure.
  • References (40)
    40 references, page 1 of 4

    2 R. Leng, 'Losing Sight of the Defendant: the Government's Proposals on Pre-trial Disclosure' [1995] Crim LR 704.

    3 It has become a fundamental principle that a defendant should not be tried without knowing the nature of the case against him. See Art. 6(3) of the European Convention on Human Rights; Jespers v Belgium (1981) 27 DR 61; Edwards v United Kingdom (1992) 15 EHRR 417; Secretary of State for the Home Department v F [2009] UKHL 28, [2010] 2 AC 269. Furthermore, Art. 6(1) of the European Convention on Human Rights requires that 'the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused'. See Rowe and Davis v United Kingdom (2000) 30 EHRR 1 at 60.

    4 R. Morgan, 'The Process is the Rule and the Punishment is the Process' (1996) 59 MLR 306.

    5 R v Keane [1994] 1 WLR 746.

    6 CPIA, s. 3, as amended by the Criminal Justice Act 2003. This provision is broader and more objective than the original s. 3, which provided for disclosure of material 'which in the prosecutor's opinion might undermine the case for the prosecution against the accused'.

    7 See, for example, S. Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (Hart: Oxford, 2007); J. Hodgson, 'The Future of Adversarial Criminal Justice in 21st Century Britain' (2010) 35 North Carolina Journal of International Law and Commercial Regulation 319; J. McEwan, 'From Adversarialism to Managerialism: Criminal Justice in Transition' (2011) 31 Legal Studies 519.

    8 For further discussion on the nature of the adversarial system, see S. Landsman, The Adversary System: A Description and Defence (American Institute for Public Policy Research: Washington, 1984); M. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (Yale University Press: New Haven, 1986); J. H. Langbein, The Origins of the Adversary Criminal Trial (Oxford University Press: Oxford, 2003); P. Van Kopen and S. Penrod, Adversarial Versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems (Kluwer Academic/Plenum Publishers: New York, 2003).

    9 Langbein, in particular, attributes the role of defence counsel during the rise of adversarialism to the defendant's ability to exercise fair trial rights, such as the privilege against self-incrimination, which allow him to take a passive role. J. H. Langbein, 'The Historic Origins of the Privilege Against Self-incrimination at Common Law' (1993) 92 Michigan Law Review 1047; Langbein, above n. 8.

    10 H. Packer, The Limits of the Criminal Sanction (Stanford University Press: Stanford, 1968) 158.

    11 See, for example, Royal Commission on Criminal Justice, Report (HMSO: London, 1993); Home Office, Justice for All, Cm 5563 (HMSO: London, 2002).

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